Alhaji Mojeed O. Ibrahim V. Chief Oyelakin Balogun & Ors (1999)
LawGlobal-Hub Lead Judgment Report
OLAGUNJU, J.C.A.
In a motion filed on 5/5/98 the applicant is praying the court for an order granting to him an extension of time within which to appeal against the judgment of Ariwoola, J., of the Oyo State High Court delivered on 12/10/95.
The application is supported by a 21 paragraph affidavit deposed to by one Alhaji Lasisi Adebayo Ibrahim who claimed to be the father of the applicant. To the affidavit are attached a copy each of the judgment and the proposed grounds of appeal marked Exhibits ‘C’ and ‘D’, respectively. Four other documents attached to the application are the applicant’s letter dated 7/4/97 written from an address in London and addressed to one Chief Oladiti Akande of Mapa, Ibadan, marked Exhibit ‘A’ and 3 photocopies of extracts of particulars from the applicant’s passport marked Exhibits ‘B’ – ‘B2’.
The gist of the affidavit is that the deponent’s son, the applicant, who was one of the 8 defendants against whom judgment was given on 12/10/95 traveled to London on 5/7/89 where he has remained since that date. That the applicant was not served with any court process before that judgment was given nor did he become aware of the judgment or the proceedings leading to it until 1/4/97 when he informed him in London. That he, the deponent, became aware of the judgment at an undisclosed date when he was served “with the application for committal of the applicant into prison for flouting the order of injunction contained in the judgment”. That the applicant informed him that when he became aware of the judgment he had to write to his solicitor Exhibit ‘A’ but the solicitor could not accept his brief until he settled his fees ‘through bank transfer’ after some delay when this motion was filed. The delay, the deponent averred, accounts for the applicant’s failure to file an appeal within the stipulated time and that, he proffered, amounted to ‘circumstances beyond his control.’
The 1st respondent filed a counter-affidavit in which he debunked the story of the applicant’s father as told in his affidavit. He deposed that he informed the applicant’s father of the judgment on 13/10/95 just a day after it was delivered and recalled the steps taken by the applicant after he had notice of the judgment. The applicant, he further deposed, filed a motion on 4/12/95 through his counsel praying the trial court to set aside the judgment. He attached to the counter affidavit a copy of the motion paper. Exhibit 2A, prepared by O. J. Chukura, Esq., of counsel and the supporting affidavit of 6 paragraphs, Exhibit 2B, deposed to by one Israel Makinde (sic), a Litigation Clerk in the Chambers of Chief Olisa Chukura, OFR., SAN. To the counter-affidavit are also attached photocopy of the 1st respondent’s complimentary card with a handwritten inscription ‘received 14/10/95’ on top and marked Exhibit ‘A’ and a photocopy of enrolment order for joinder and substituted service of court process, Exhibit ‘1’. A copy of the ruling on motion delivered on 12/12/96 by Arasi, J., is also attached to the counter affidavit and marked Exhibit ‘3’.
A further affidavit was later filed by the applicant’s father. In it the deponent lamented that the 1st respondent knowing that he was the applicant’s father did not inform him of the pendency of the action until after the judgment when he invited him to come and negotiate a settlement. He, however, admitted the 1st respondent’s story in paragraphs 10 to 13 of the counter-affidavit about the motion to set aside the judgment filed and prosecuted to finality on behalf of the applicant by his counsel. That, in effect, is an admission by the applicant’s father that he was informed of the judgment on 14/10/95 as claimed by the 1st respondent in paragraph 6 of his counter-affidavit with the implications of the admission for the deposition in paragraphs 8 to 10 of the affidavit supporting the motion as I will discuss later.
On these facts, learned counsel to the applicant, Mr. N. A. L. Okunade, moved his motion which he brought under section 25 of the Court of Appeal Act, Cap. 75 of 1990 Edition of the Laws of Federation of Nigeria, and Order 3, rule 4, of the Court of Appeal Rules, 1981. He submitted that the facts deposed to in the affidavit and further affidavit in support of the motion are cogent enough to excuse the delay for not appealing within time and ample to sustain the applicant’s prayer which he urged me to grant.
Opposing the motion the 1st respondent who was appearing for himself submitted that the application should be refused on three grounds. Firstly, that the applicant withheld information about his unsuccessful action to set aside the judgment. Secondly, that the applicant failed to give good and genuine reason for not filing his appeal within the time stipulated for doing so and for the delay in bringing this application. Thirdly, that the application is incompetent. I will examine the three grounds but since incompetence of an action rubs on the jurisdiction of the court I will examine that ground first.
It is the contention of the 1st respondent that the application is incompetent because it does not combine the three prayers which an application for leave to appeal out of time must contain, namely, enlargement of time to seek leave to appeal, leave to appeal and extension of time within which to appeal. He submitted that the applicant’s motion which seeks only an extension of time to appeal omitted the two other prayers which are mandatory and is for that reason incompetent on the authority of the Supreme Court’s decisions in Owena Bank Plc. v. Nigerian Stock Exchange Ltd., (1997) 7 SCNJ; 160, 171; (1997) 8 NWLR (Pt.515) 1 and Bolox Enterprises Nigeria Ltd. v. Incar Nigeria Plc. (1977) 7 SCNJ 194, 199. He urged the court to strike out the motion as incompetent.
Replying on point of law, learned counsel for the applicant submitted that Bolox Enterprises Nigeria Ltd. v. Incar Nigeria Plc., op, Cit., on which learned counsel for the 1st respondent relied is distinguishable. He canvassed that it was an appeal to the Supreme Court against the decision of the Court of Appeal on facts or mixed law and facts which required leave of the court by virtue of sub-section 213 (3) of the Constitution of the Federal Republic of Nigeria, 1979, and that on application for leave the Supreme Court held that failure of the applicant to include in its application the prayer for extension of time within which to appeal rendered the application to be incompetent. He submitted that the present application is different because the applicant’s right of appeal does not require leave of the court.
He referred to Yesufu v. Co-operative Bank Ltd. (1989) 6 S.C. 111; (1989) 3 NWLR (Pt.110) 483 which he submitted is more appropriate on the facts of this application as it laid down the principles governing the granting of application to file an appeal outside the stipulated time. It seems that there is force in the argument of the learned counsel on this point.
At the centre of the misconception about the proper method of formulating application for extension of time within which to appeal is the dichotomy in the rights of appeal in civil matters created by the Constitution of the Federal Republic of Nigeria, 1979, as amended. These are:
(a) appeal as of right, i.e. one exercisable without the sanction of any court, governed by
(i) sub-section 213(2) in respect of appeal to the Supreme Court from the decision of the Court of Appeal; and
(ii) sections 220, 223(1), 224 (1) and 225(1) in respect of appeal to the Court of Appeal from the decisions of the High Court, Sharia and Customary Courts of Appeal and Code of Conduct Tribunal; and
(b) appeal with leave of the court, i.e. for which a prior sanction is required, controlled by
(i) sub-sections 213 (3) and (5) in respect of appeal to the Supreme Court from the decision of the Court of Appeal; and
(ii) sub-sections 221 (1), 222 (a) 223 (2)(a) and 224(2) (a) in respect of appeal to the Court of Appeal from the decisions of the High Court, Sharia and Customary Courts of Appeal.
Where the right of appeal is exercised within the time stipulated by the law appeal as of right is filed without ado in contradistinction to appeal with leave of the court for which a prior approval of the court so authorised must be obtained.
Where, however, a prospective applicant could not file his notice of appeal within the time stipulated for doing so by section 27 of the Supreme Court Act or section 25 of the Court of Appeal Act recourse is permitted to either Order 2, rules 28 and 31, of the Supreme Court Rules, 1985, or rules 3 and 4 of Order 3 of the Court of Appeal Rules, 1981, as may be appropriate. The two sets of rules allow alike the court concerned to enlarge the time within which the prospective appellant can file his appeal and the indulgence applies to the two types of right of appeal. i.e. both the rights exercisable with or without leave of the court.
Appeal filed within the time stipulated for doing so, either as of right or with leave of the court, is, by and large, rarely susceptible to hitches or mishaps. It is the exercise of the right of appeal out of time that gives rise to difficulty about the way the application for enlargement of time should be formulated and the difficulty appears to be due largely to failure to keep distinct the relief calls for by the two types of application. Between appeal as of right in which only an extension of time to file notice of appeal is being sought and appeal with leave of the court that must first solicit for leave as a condition precedent to filing notice of appeal and since at the time of the application for leave time to file an appeal would have run out simultaneously with the time to ask for leave (for which see Owoniboys Technical Services Ltd. v. John Holt Ltd., (1991) 6 NWLR. (Pt.199) 550, the application for an extension of time must cover in one fell swoop both the leave with its dual reliefs and time to file the notice of appeal.
It has been suggested that the difficulty inherent in the proper formulation of this type of application is the result of the interpretation of the modes of exercising two separate rights which are lumped together in the phrase ‘shall give notice of appeal or notice of … application for leave to appeal in sub-section 27(1) of the Supreme Court Act which is a facsimile of sub-section 25(1) of the Court of Appeal Act that tends to blur the intrinsic identity of the separate reliefs therein created: see Akeredolu v. Akinremi, (1986) 4 S.C. 325, 371; (1986) 2 NWLR (Pt.25) 710.
In the light of the confusion shown to be common in practice in formulating an application combining prayers for the two rights which that decision and the decision in NALSA & Team Associates v. Nigerian National Petroleum Corporation, (1991) 11 SCNJ, 51; (1991) 8 NWLR (Pt.212)652, typify the suggestion is not far fetched and that underscores the need to bring the distinction into analytical focus.
Against this background, there is a divergence in the method for formulating application to enforce the two rights outside the stipulated time. First, appeal as of right. It seems that from the nature of the rights created as outlined above one who is seeking leave to be allowed to exercise the prerogative to appeal as of right does not have any additional prayer to make than a straight forward one for an extension of time within which to file his notice of appeal.
It is different in formulating an application for the second type of prayer in which there must clearly be separated the three reliefs which such application entails, namely, extension of time to ask for leave as a precondition for the exercise of the right of appeal, the leave itself and enlargement of time within which to file the appeal that is brought outside the stipulated time. It is an amalgam of three separate reliefs in one application which ordinarily would have required taking several separate steps. Thus the rule on tripod-prayer application stemmed from the need to combine in one application what would require two or more applications.
It is a rule contrived to save time by short-circuiting the long process of getting a result and it posits that an applicant must unite in one single application prayers for (a) extension of time for leave to appeal (b) leave to appeal and (c) extension of time within which to appeal.
One striking feature of the rule is that in such an application leave to appeal is dominant which in combination with the prayer for an extension of time within which to appeal makes it a hybrid that is designed to meet a special need. The rule has no relevance to an application that requires no leave before exercising the right of appeal.
Random survey of cases in which the competence of an application for enlargement of time is based on a union of three reliefs shows that the test is relevant and applies only where appeal to a higher court lies with leave of the court but is inappropriate and meaningless where appeal lies as of right. This can be illustrated by a handful of such cases.
Traogbu v. Okwordu, (1990) 10 SCNJ 87, is a good start.
The appeal on grounds of facts and mixed law and facts got off to a jerky start when midway learned counsel for the appellants realised that leave of the court was required before exercising the right of appeal. After a few tumbles about the framing of an application the Supreme Court granted the final application which satisfied the requirement of a union of the three reliefs.
There is a parallel between that case and the earlier decision of this court in Abdullahi v. Hairu (1977) 3 FCA. 139, which turned on an initial misconception of the law that the applicant could appeal as of right when in fact the right could not be exercised without leave of the court. After running from pillar to post to ascertain the correct legal position leave was sought and granted on an application to this court that combined the prayers for leave to appeal and extension of time within which to appeal.
Attorney-General of the Federation v. A. I. C. Ltd., (1995) 2 SCNJ. 113; (1995) 6 NWLR (Pt.378) 388; ushered in a refreshing dimension to the issue in the sense that it combined with the normal three prayers for extension of time to apply for leave to appeal, leave to appeal and enlargement of time to file notice and grounds of appeal four other reliefs which include setting aside the incompetent notice of appeal earlier filed and notice of its withdrawal by agreement filed later.
The Supreme Court granted all the seven prayers on the ground that the applicant’s counsel who filed the incompetent notice of appeal had acted without the authority of the applicant. In this case as in the two other preceding cases the defective notice of appeal was filed well within time for filing an appeal but without leave of the court.
But a sour fate befell the appeal in Agu v. Odofin (1992) 3 SCNJ 161; (1992) 3 NWLR (Pt.229) 350, which was doomed ab initio when on a further appeal to the Supreme Court the leave granted by the Court of Appeal as a condition precedent to the exercise of the right of appeal to it was attacked as defective because of the omission from the application of the prayer for an extension of time to file an appeal after the stipulated time. The decision of the Court of Appeal based on the defective application was set aside by the Supreme Court. Similarly, in Funduk Engineering Ltd. v. James McArthur, In Re Col. Yohanna Madaki, (1996) 7 SCNJ 64; (1996)Â Â 7 NWLR (Pt.459) 153 failure to include the prayer for an extension of time to appeal out of time in the application for leave to appeal as an interested person was held to be fatal to the applicant’s appeal against the judgment of the Oyo State High Court. Thus, the applicant’s right of appeal to the Court of Appeal under subsection 222(a) of the Constitutional fizzled out.
Again, in both Owena Bank (Nigeria) Plc. v. Stock Exchange Ltd. (1997) 7 SCNJ 160: (1997) 8 NWLR (Pt.515) 1; Bolex Enterprises Nigeria Ltd. v. Incar Nigeria Plc., op. Cit., the appeals were scotched because of the failure of the appellant in each case to include the prayer for an extension of time to appeal out of the stipulated time in her application for leave to appeal, in the former case before the Court of Appeal and in the latter case before the Supreme Court.
Yet again, the appeal in NALSA Team Associates v. Nigerian National Petroleum Corporation op. Cit., was beset by a run of disasters that bounced back about 5 years later to strike at the second appeal in a relay of appeals on the same matter reported under the same case-title as (1996) 3 SCNJ. 50. The genesis of the mishap is the incompetent notice of appeal filed without leave of the Court compounded by the omission from the remedial application brought for leave to appeal of the prayer for an extension of time within which to appeal. Not only was an appeal successfully taken against the leave granted but also the decision reached at the end of the proceedings based on the defective leave granted was in the latter appeal held to be a nullity as a judicial act done without jurisdiction.
It is clear from the above decisions that the principle that there must be a union of three prayers for the validity of an application for enlargement of time within which to appeal is applicable only when such an application is combined with application for leave to appeal. But independently of the conclusion that emerged from a review of the decided cases about the scope of the application of that rule of practice the nature of the first two prayers that must be combined with the third for the operation of the rule predicates the premise that leave to appeal is an integral part of the application before the court and, indeed, is indispensable to the application of the rule. Consequently, in a simple application for extension of time to appeal where leave to appeal is not required for the exercise of the right to appeal any suggestion about the application of the rule of union of prayers is a sheer facile doctrinaire argument.
The application before this court is for an extension of time within which the applicant can appeal against the final decision of the Oyo State High Court sitting at first instance in which he was one of the eight defendants in the action. By virtue of sub-section 220 (a) of the Constitution the applicant is entitled to appeal against that judgment as of right. Having found on the interpretation of the relevant provisions of the Constitution and the related legislations on the point that the principle that there must be a union of three prayers does not apply to application for enlargement of time to file an appeal that lies as of right I come to the conclusion that the applicant’s motion is competent. Therefore, the argument of learned counsel for the 1st respondent to the contrary is attractive but without substance. With the mist of not seeing the weed from the trees in formulating the application cleared the perspective is set to examine the merits of the application noting as appropriate the objection of learned counsel for the 1st respondent on the remaining two grounds.
The principles on which the court will grant an application for extension of time within which to appeal have been explained in a number of decisions of the Supreme Court of which mention may be made of Ojora v. Bakare (1976) 1 S.C. 47; Bowaje v. Adediwura, (1976) 20 6 S.C. 143; Alagbe v. Abimbola (1978) 2 S.C. 39; Ibodo v. Enarofia (1980) 5-7 S.C. 42; Moukarim v. Agbaje (1982) 11 S.C. 122; University of Lagas v. Olaniyan, (1985) 1 NWLR, (Pt.1) 156; and Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR. (Pt.77) 383. The authorities are unanimous on the proposition of the law that for an application for extension of time within which to appeal to succeed there must co-exist:
(a) good and substantial reasons for the failure to appeal within the period prescribed by the appropriate law; and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions are distilled from sub-rule 4 (2) of Order 3 of the Court of Appeal Rules, 1981, which is an abridgement of sub-rule 31(2) of Order 2 of the Supreme Court Rules, 1985, and are in pari materia on the point at issue.
The first condition requires that an applicant must give good and substantial reasons for the delay in bringing the application or for not filing the appeal within the stipulated time. To satisfy that condition it has been explained ‘on behalf of the applicant’ that he has been living in London outside this country since the 1st respondent’s action that was filed on 24/5/93. That the applicant was not aware that the action was instituted against him until he was informed in London by his father on 1/4/97. That he arranged for a counsel to take up the case for him through a letter dated 7/4/97 but because of the difficulty of getting the counsel’s fees remitted to him in Nigeria the counsel could not accept the brief and that accounted for why the present motion could not be filed until 15/5/98.
That story which was told by the applicant through his father, who was acting as his proxy is contradicted by the disclosure made by the 1st respondent in his counter-affidavit that the applicant became aware of the judgment in the case as far back as 14/10/95 pursuant to which he instructed the firm of Chief Olisa Chukura. OFR. SAN. & Co., who on 4/12/95 filed a motion praying the High Court to set aside the judgment which was dismissed on 12/12/96.
The applicant’s father having admitted later in his further affidavit that the proceedings to set aside the judgment were initiated on the instruction of the applicant he can no longer maintain the story in paragraph 9 of his affidavit supporting the motion that the applicant did not know about the judgment until 1/4/97 while his deposition in paragraphs 10, 18 and 19 thereof about the difficulty he encountered before Chief Oladiti Akande accepted his brief which he advanced as the reason for not filing an appeal within the stipulated time or the cause of delay for not bringing this application earlier is an eye-wash and therefore, untenable. In sum, the deponent to the affidavits raised in support of the motion having contradicted himself about the date when the applicant knew about the action and, in effect, about the involvement of the applicant in the matter from a much earlier date than the deponent claimed there is no reliable account given by the applicant of the reason for the delay in bringing this application. The contradiction in the deponent’s story apart, the deposition in the affidavit of the applicant’s father on matters which are peculiarly within the knowledge of the applicant is, at best, hearsay that is at variance with the steps taken in the matter by the applicant and there is the rub.
Germane to the question or lack of coherent and honest explanations about the delay in bringing this application is the applicant’s failure to disclose to the court the proceedings for setting aside the judgment which he initiated, a lapse which the 1st respondent highlighted in his second ground of objection to the application, and the implications of which I have alluded to. He submitted that withholding such material facts runs counter to the equitable maxim that he who comes to equity must come with clean hands craving in aid the decision of this court in Adewale Bello Constructions Co. Ltd. v. International bank for West African Ltd. (1991) 7 NWLR (Pt.204) 498. 506, where the court, per Achike, J.C.A., as he then was, said:
“Where the suppliant for equity misrepresents the facts with respect to the equity he seeks from the court, the court would decline to exercise its discretion in that party’s favour, See Craig v. Craig 16 NLR 103 and Viatonu v. Odutayo & Another 19 NLR 119.”
The applicant, he submitted, is not entitled to the exercise in his favour of the discretion of this court from which he has secreted material facts.
That point as well as the third ground of his objection to the application that the long delay by the applicant before coming to a decision to appeal is inordinate is well taken considering the fact that no positive step is shown to have been taken by the applicant to bring an application for about 18 months, from 12/12/96 when the application to set aside the judgment was dismissed to 15/5/98 when the present application was filed. But since the scrutiny of the grounds of appeal must co-exist with the explanations about the delay as conditions for granting the application it will be precipitate to come to any conclusion on those lapses the gravity of which may be moderated by the potency of the grounds of appeal; afortiori, when lapses about long delay have been held to be completely excused where the complaint in the ground of appeal was about jurisdiction of the trial court which, prima facie, appeared to be so: see Ukwu v. Bunge (1997) 7 SCNJ. 262, 274: (1997) 8 NWLR (Pt.518) 527. In any case. Yesufu v. Co-operative Bank Ltd. op. Cit., is a warning signal to the court to be wary and to avoid coming to a conclusion until the two conditions are examined. For a refreshing but thoughtful approach that reflects both sides of the controversy on the point, see Shittu v. Onabanjo, In Re: Adewunmi (1988) 3 NWLR (Pt.83) 483, 497, which should be read with the salient part of the dissenting opinion at page 506 that is reinforced by Orakaa v. Bashi, (1986) 1 CA (Pt.11) 84: and FHA. v. Abosede (1998) 1 SCNJ. 133: (1998) 2 NWLR (Pt.537) 117. I move to the proposed grounds of appeal.
Five grounds of appeal are proposed by the applicant which hover round the main complaint the gist of which is that the learned trial Judge acted without jurisdiction when he entered judgment against the applicant who is residing in London, a country outside Nigeria, without serving on him the originating and other court processes and by so doing violated the provisions of rules 6 and 14 of Order 5 of the Oyo State High Court (Civil Procedure) Rules, 1988, and section 97 of the Sheriffs and Civil Process Act, ‘Cap. 189 Laws of Federation of Nigeria (sic).
The current and correct citation of that Act is ‘Cap. 407 of 1990 Edition of the Laws of Federation of Nigeria’ which substantially re-enacted with the same number section 97 of Cap. 189 of 1958 Edition of the Laws of Federation of Nigeria.
The grounds of appeal suffer from two major defects. Firstly, they are not related to the judgment being appealed against or are a departure from the issues canvassed at the court below. Rule 6 of Order 5 of the Oyo State High Court (Civil Procedure) Rules, 1988, enjoins that no writ of summons for service out of the jurisdiction of the court shall be issued without the leave of court or a judge in the chambers. It is complemented by rule 14 that prohibits the service of a writ of summons out of jurisdiction without the leave of court.
A violation of these rules was not an issue before the trial court where the only issue taken up in the judgment was the service of the process within the jurisdiction of the court, a point that was pursued in the proceedings in the application to set aside the judgment and was answered at both levels by the enrolled order of substituted service attached to the 1st respondent’s counter affidavit and marked Exhibit ‘1’. Thus obtaining leave of the court before issuing the originating process which is made the corner-stone of the proposed grounds of appeal is a new issue while service of the writ of summons and other processes out of jurisdiction which is alleged to have infringed rule 14 of Order 5 is, on the facts of this case, a non-issue there being no process in the action shown to have been served outside Oyo State. It has been held that no substantial point that has not been taken at the trial court would be allowed to be taken on appeal without leave of the court; see Ejiofodormi v. Okonkwo (1982) 13 NSCC. 422, 430, 434-436; Dwoye v. Iyomahan (1983) 8 S.C. 76, 83, and Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192, 205-206. No such leave is sought.
In this connection the whole idea of the applicant living in London introduced subtly to accommodate service out of jurisdiction as a ploy for complaint is, in the light of the history of this case, a bolt from the blue for which the applicant’s motion to set aside the judgment and the supporting affidavit attached to the 1st respondent’s counter affidavit are an eye-opener. The main ground of the application as stated in the body of that motion paper is that the applicant was not served with the originating writ of summons and other court processes. The affidavit which expatiated upon the ground did not betray any inkling that the applicant could be living outside Oyo State. Indeed, the affidavit, arguments based thereon and the ruling proceeded on the footing that he was living in Ibadan and the bone of contention was whether he was served with the court processes within the jurisdiction of the trial court in Ibadan, a question which was answered by the production or the enrolled order of substituted service that is consistent with service within the jurisdiction of the court.
What is more application to set aside the judgment was brought pursuant to Order 22, rule 3, and Order 27, rule 10, of the Oyo State High Court (Civil Procedure) Rules 1988, a procedure which runs counter to the stand taken in the second arm of the applicant’s claim that the issuance of the writ of summons was also done in violation of section 97 of the Sheriffs and Civil Process Act. Putting aside my reservation about the applicability of that Act to this case as it will soon be made manifest it is still obvious that service of process out of jurisdiction was not an issue at the court below. Were violation or service of process out of jurisdiction to be in the applicant’s contemplation from the beginning the application to set aside the judgment would have been brought by the applicant under subsection 101 (2) of the Act as the appropriate mode of challenging non-compliance with section 97 thereof: see Adegoke Motors Ltd. v. Dr. Adesanya (1989) 3 NWLR (Pt.109) 250, 294-295. That gives the lie to the applicant’s claim based on the ground that the writ of summons and other court processes were issue or ought to be issued for service out of jurisdiction.
It is for these reasons that the introduction of the applicant’s sojourn in England into the current application becomes inscrutable and suspect and one that can only be explained on the hypothesis that it is either a brazen afterthought or a naive attempt to draw red-herrings across the trail. However, that may be, the proposed grounds of appeal are a subtle but calculated attempt to create new issues outside the issues canvassed in the judgment to be appealed against. It is a ruse cloaked to overreach and therefore, unconscionable.
Secondly, there is a grave misconception about the legislation on which the grounds of appeal are predicated. Part VIII of the Sheriffs and Civil Process Act which section 97 forms a part deals with service of originating writ of summons and other court processes issued in one state including the Federal Capital Territory, Abuja, on a defendant residing in another state within Nigeria and the section sets out the endorsement which such a writ must carry to the effect that the summons, etc” is to be served out of state ‘X’ and in the state ‘Y’ within the Federation of Nigeria.
Section 97 or any other provision of Part VIII of the Act does not direct how a writ of summons or other court processes for service in a commonwealth or foreign country are to be issued and served. The erroneous assumption that the section covers the whole plenitude of the issuance and service of court processes both within and outside Nigeria led to the misapprehension that the learned trial Judge applied wrongly the laid down procedure which is made the foundation for the appeal, a refrain of which is echoed in variant notes by each of the five grounds of appeal.
A grasp of the origin and purpose of Part VII of the Sheriffs and Civil Process Act is vital for an appreciation of the misconception that bedevilled the proposed grounds of appeal. That part of the Act which combines both services of court processes and execution of judgment is the product of section 4 of the Constitution of the Federal Republic of Nigeria, 1979, and item 56 of the Second Schedule thereto on the exclusive legislative list which apportioned legislative powers between the Federal and State Governments in the judicial administration of the country. In matters relating to service of court processes Part VIII of the Act is designed to regulate the inter-state operation of administration of justice so as to ensure that the legislative autonomy enjoyed by the states in judicial matters within the confine of their respective domains does not hamper the smooth running of the mechanism of law enforcement across the states’ political boundaries.
The scope and application of the provisions of Part VII of the Act dealing with the service of court processes were examined at length by the Supreme Court in Skenconsult Nigeria Ltd. v. Ukey (1981) 1 S.C. 6, and explained, restated and applied in Ezemo v. Oyakhire (1985) 1 NWLR. (Pt. 2) 195; and Adegoke Motors Ltd. v. Dr. Adesanya op. Cit. The ramifications of the material provisions of Part VII of the Act were lucidly expounded in these decisions as to leave no one in doubt that that area of the legislation is to enable court processes to be served on defendants who are residing outside the state issuing the court processes and over whom the issuing state could not as of right have been able to exercise any judicial authority because of the autonomy of the states on the matter but for the special dispensation provided in Part VII that permits the exercise of extra-territorial power for service of process between the states within the country.
From the scope and purpose of Part VII of the Act as expounded in these cases it is clear that section 97 thereof cannot avail the applicant who is claiming that at all times material to the service of the originating writ of summons and other court processes by the court below he was living in London. As section 97 upon which he relies to vindicate procedural errors by the trial court is concerned with the regulation of the service of the relevant court processes between the states within this country it does not create any legal right for a person in the applicant’s position whose grouse is that the court processes that initiated and effectuated the action that led to the judgment entered against him did not comply with the conditions laid down by that section.
It follows that as the applicant does not derive any right under section 97 of the Act seeking a relief for the breach of the provision of that section is illusory and a day-dream for which a supplication for an extension of time to establish is idle; indeed, it is like asking for leave to search for the Holy Grail, an indulgence which the court cannot grant. In other words, since service of the court processes on one who is staying outside Nigeria is not regulated by the provisions of Part VII of the Sheriffs and Civil Process Act which section 97 forms a part any proposed ground of appeal predicated on that section is inane and ineffectual.
The note of desperation by the applicant to challenge the decision of the trial court is betrayed by the mustering up five grounds of appeal for a concerted attack on the jurisdiction of that court as a vulnerable power-house of any decision making organ. Because of the central position of jurisdiction as the nerve-centre in which the court’s authority is clothed its exercise must be accounted for and it can be called into question at any time. That explains the flexibility and latitude allowed when challenging a decision on the ground of jurisdiction, an issue which can be raised at any stage of the proceedings both at the trial and appellate levels, and because of its fundamental nature it can be raised for the first time at the court of last resort: see Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR, 296 Olariode v. Oyebi (1984) 5 S.C.1, 32-33; 1984, 1 SCNLR 390 and Olaba v. Akereja (1988) 3 NWLR (Pt.84) 508, 520, 526 – 527. The court can and it is duty bound to raise the issue suo motu: see Odiase v. Agho, (1972) 1 All NLR (Pt.1) 170, and Ajao v. Alao (1986) 5 NWLR (Pt.45) 802.
Exceptionally, the issue can be entertained on appeal with leave of the court even if it is not raised at the trial court. See, variously, Din v. Attorney-General of the Federation (1988) 9 SCNJ. 14 45-46; (1988) 4 NWLR (Pt.87) 147; Akinfolarin v. Akinnola (1988) 3 NWLR. (Pt.81) 235, 246; Mallo v. Buwace (1988) 4 NWLR (Pt.89) 422; 429; and, in particular, Adamu v. Ikharo, (1988) 4 NWLR (Pt.89) 474, 491, which explains what an appellant who intends to argue new issue not canvassed at the lower court must do and for which see, further Skenconsult v. Ukey supra, at page 18, and Achineka v Ishagba (1988) 4 NWLR (Pt.89) 411, 417.
But notwithstanding the extensive range of indulgence allowed on issues touching on jurisdiction as noted above the exercise of the right is not intended to be a licence as investing a supplicant with a carte blanche to manipulate the evidence. Thus the ground on which such as issue can be raised cannot be allowed to deviate from the evidence led before the trial court nor can the latitude granted on an exceptional ground be allowed to degenerate into a ploy to move the goalposts by tinkering with the evidence on which the case was fought at the trial court.
Finally, let me reiterate for the purpose of emphasis two correlative principles of law that are the hub around which this application revolves and are decisive of the debate on the matter. Firstly, it is not allowed for a party to raise on appeal new issues outside the issues canvassed at the trial the corollary of which is that an appellant must confine himself to the issues framed by the pleadings and canvassed at the trial: see Lipede v. Shonekan (1995) 1 SCNJ 184, 196-197; (1995) 1 NWLR (Pt.374) 668 and Chief Oyelakin Balogun v. M.O.A. Adejobi (1995) 1 SCNJ. 242, 250; (1995) 2 NWLR (Pt.376) 131. Secondly, grounds of appeal must be a complaint against the decision being challenged on appeal and the mode of ventilating the wrong is not by fret and fume but by a frontal attack of the issues raised in the pleadings or canvassed in the judgment through grounds of appeal framed to achieve that end. In doing this it is imperative that there should be a correlation between the grounds of appeal and the judgment being challenged; a contrariety between the two will be a change of focus which is a fatal error: see Okon v. The State, (1995) 1 SCNJ 174 178; (1995) 1 NWLR (Pt.372) 382; Alakija v. Abdullai, (1998) 5 SCNJ. 1, 18, 21-22; (1998) 6 NWLR (Pt.552) 1; Osho v. Ape (1998) 6 SCNJ 23, 37; (1998) 8 NWLR (Pt.562) 492.
As Belgore, J.S.C., put it laconically in Irom v. Okimba, (1998) 2 SCNJ, 1, 5; (1998) 3 NWLR (Pt.540) 19, the primary duty of the court is to hear parties on their complaints and to confine them to the battle ground they have chosen. In the context of the application under review the battle line is drawn by the issues canvasses at the trial.
One golden rule for an aggrieved person seeking a redress in appellate quarters is the appreciation that an appeal is a reflective medium for challenging a judicial decision where all cards are laid on the table for a calm and dispassionate review and not a circus for scare mongering where an appellant can stir up the hornets’ nest or bluff his way through with a display of highfalutin grounds of appeal as a showpiece of hollow strength to test a palpably ridiculous claim.
However that may be, the conclusion is obvious. With the proposed grounds of appeal raising issues that did not arise from the judgment to be appealed against, shortcomings which are compromised by a crass misconception about the application or an inappropriate legislation to the complaints formulated as grounds of appeal, I find the proposed grounds of appeal to be worthless. The beggarliness of the proposed grounds of appeal coupled with failure to give coherent and sincere explanations for a delay of some 17 months before coming to a decision to appeal is a clear indication that the proposed appeal would not be worthwhile. The application is fishing with practically no shadow of merit and I dismiss it.
Application dismissed.
Other Citations: (1999)LCN/0517(CA)
